Although we traditionally have viewed that right as limited to a union between a man and a woman, "‘if we have learned anything from the significant evolution in the prevailing societal views and official policies toward members of minority races and toward women over the past half-century, it is that even the most familiar and generally accepted of social practices and traditions often mask unfairness and inequality that frequently is not recognized or appreciated by those not directly harmed by those practices or traditions.

It is instructive to recall in this regard that the traditional, well-established legal rules and practices of our not-so-distant past barred interracial marriage, upheld the routine exclusion of women from many occupations and official duties, and considered the relegation of racial minorities to separate and assertedly equivalent public facilities and institutions as constitutionally equal treatment."’ In re Marriage Cases, supra, 43 Cal. 4th 853–54.

Like these once prevalent views, our conventional understanding of marriage must yield to a more contemporary appreciation of the rights entitled to constitutional protection. Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same sex partner of their choice.

To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others. The guarantee of equal protection under the law, and our obligation to uphold that command, forbids us from doing so. In accordance with these state constitutional requirements, same sex couples cannot be denied the freedom to marry.

The judgment is reversed and the case is remanded with direction to grant the plaintiffs’ motion for summary judgment and application for injunctive relief.

justice peter t. zarella wrote a scathing twenty-five page page dissent: "the ancient definition of marriage as the union of one man and one woman has its basis in biology, not bigotry. [...] it also is obvious that a couple that is incapable of engaging in the type of sexual conduct that can result in children is not similarly situated to a couple that is capable of engaging in such conduct with respect to legislation that is intended to privilege and regulate that conduct." click here to download the twenty-five page dissent .pdf [192 kb].